United States District Court, N.D. California
DAVID B. PORTEE, Petitioner,
ORDER OF DISMISSAL
DONATO UNITED STATES DISTRICT JUDGE.
a California prisoner, proceeds with a pro se petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. The
original petition was dismissed with leave to amend and
petitioner has filed an amended petition.
Court may consider a petition for writ of habeas corpus
“in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a);
Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas
corpus petitions must meet heightened pleading requirements.
McFarland v. Scott, 512 U.S. 849, 856 (1994). An
application for a federal writ of habeas corpus filed by a
prisoner who is in state custody pursuant to a judgment of a
state court must “specify all the grounds for relief
available to the petitioner ... [and] state the facts
supporting each ground.” Rule 2(c) of the Rules
Governing § 2254 Cases, 28 U.S.C. § 2254.
“‘[N]otice' pleading is not sufficient, for
the petition is expected to state facts that point to a
‘real possibility of constitutional error.'”
Rule 4 Advisory Committee Notes (quoting Aubut v.
Maine, 431 F.2d 688, 689 (1st Cir. 1970)).
was convicted in 1982 and sentenced to life in prison. Am.
Pet. at 1. In the original habeas petition, the main argument
was that the judges involved with various events in
petitioner's case in 1981 -- his arrest warrant, a search
warrant, and a preliminary hearing -- did not have proper
oaths of office in place. This was, on its face, a highly
doubtful claim, but the Court determined in any event that it
appeared to be successive or untimely. The petition was
dismissed with leave to amend to address that issue, which is
now taken up here.
claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a
prior application shall be dismissed . . .” 28 U.S.C.
§ 2244(b)(2). This is the case unless,
(A) the applicant shows that the claim relies on a new rule
of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
(B) (i) the factual predicate for the claim could not have
been discovered previously through the exercise of due
(ii) the facts underlying the claim, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
28 U.S.C. § 2244(b)(2).
a second or successive application permitted by this section
is filed in the district court, the applicant shall move in
the appropriate court of appeals for an order authorizing the
district court to consider the application.” 28 U.S.C.
Antiterrorism and Effective Death Penalty Act of 1996, which
became law on April 24, 1996, imposed for the first time a
statute of limitations on petitions for a writ of habeas
corpus filed by state prisoners. Petitions filed by prisoners
challenging noncapital state convictions or sentences must be
filed within one year of the latest of the date on which: (A)
the judgment became final after the conclusion of direct
review or the time passed for seeking direct review; (B) an
impediment to filing an application created by
unconstitutional state action was removed, if such action
prevented petitioner from filing; (C) the constitutional
right asserted was recognized by the Supreme Court, if the
right was newly recognized by the Supreme Court and made
retroactive to cases on collateral review; or (D) the factual
predicate of the claim could have been discovered through the
exercise of due ...